This is yet another article in which the Economist would be better served to have an actual lawyer review the case decision first, before letting a hack take a random stab at writing about it. It is also another situation in which commenters would be better served to actually read the decision, and the dissents, before commenting on any of them.

I realize that it is popular to bash conservative jurists as unfeeling monsters, but the Economist writer took Scalia's quote so far out of context and reason that it is almost slanderous.

First, the lawsuit was not specifically about overcrowding on its own. It was about the grossly inadeqate medical treatment available, in particular the mental health treatment being provided. California had previously conceded these problems existent, and under a prior agreement had pledged to correct them. However, the state had not complied within the time period provided, and therefore the plaintiffs were suing to enforce compliance. The lower court concluded that the only way to get compliance was to reduce the prison population; hence the order to reduce crowding within 2 years. In other words, the prisoners were not suing over overcrowding, but medical inadequacies, and the overcrowding order was given as the remedy to the medical problem.

The issue in Scalia's dissent was NOT that inhumane conditions in California's prisons were hunky-dory. Scalia's dissent was objecting to the handling of the complaint as a class action by all prisoners against the prison medical system (individual prisoners could always bring 8th Amendment violations, but it is a bit of a stretch to say that all prisoners are being affected equally by a hypothetical medical inadequacy). Scalia also noted that not all prisoners were being affected by the poor medical treatment available, yet the ones that were most likely to be released under the court injunction were the ones most likely to be perfectly healthy and physically fit -- after all, the sick and mentally ill were not going to be released just to comply with the court order.

Scalia was also taking issue with the form of the injunction. He was complaining that this case was not suitable for a "structural injunction" (i.e. ordering systemwide reductions in prisoner numbers), largely because of the balance-of-harm calculation -- an injunction should always be narrowly tailored to cure the problem solved, but not be overbroad so as to cause potential harm to the opposing party (in this case, the people of the state of California). The blanket order requiring a reduction in crowding would be potentially overbroad in the sense that it would result in the early release of a flood of prisoners, which could compromise public safety. Scalia acknowledged that a more appropriate form of injunction would be an individualized one. As he stated plainly in his dissent:

"In my view, a court may not order a prisoner's release unless it determines that the prisoner is suffering from a violation of his constitutional rights, and that his release, and no other relief, will remedy that violation. Thus, if the court determines that a particular prisoner is being denied constitutionally required medical treatment, and the release of that prisoner (and no other remedy) would enable him to obtain medical treatment, then the court can order his release; but a court may not order the release of prisoners who have suffered no violations of their constitutional rights, merely to make it less likely that that will happen to them in the future."

The Alito dissent was essentially on the same lines: that the injunction was not narrowly tailored (i.e. the court must show that there is no other way of providing the necessary medical treatment before ordering a remedy as drastic as a mass-release), and the court did not properly run a balance-of-harm evaluation on the issue of public safety.

This was not an issue of the conservatives tolerating overcrowding, since that is not the question they were being asked to remedy. The issue was about inadequate medical treatment, and the conservatives on the court were merely pointing out that there are a variety of ways for a court to insure adequate medical treatment without requiring the release of prisoners (for example, instead of ordering reductions in prison populations, the court could just as easily have ordered construction of new facilities, etc.).

The Economist really should invest in a couple of law school grads to explain stuff to their writers.

I am upset with a couple of their decisions but for this court case to go 5-4...just wow.

How can you look at that and say it is not cruel and unusual.
I write a bad check, get caught having a bag of pot twice and then get 25 years (three strikes law) and then get stabbed to death in prison or have to be a gang's piece of meat to stay alive.

Yeah, that is really looking out for public safety. And I doubt I am exaggerating that story greatly.

FYI, this is the actual Scalia quote -- in full, and in proper context:

"It is also worth noting the peculiarity that the vast majority of inmates most generously rewarded by the re-lease order--the 46,000 whose incarceration will be ended--do not form part of any aggrieved class even under the Court's expansive notion of constitutional violation. Most of them will not be prisoners with medical conditions or severe mental illness; and many will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym."

In other words, the sick, infirm, and mentally ill are not the ones that are going to win release. In order to comply with the overcrowding order, California is going to have to release those who are very likely to be perfectly healthy -- a supreme irony given that the original lawsuit was about remedying the poor medical treatment of ill prisoners.

Judges do not have much discretion when it comes to these mandatory or mandatory minimum sentences. Hence the word, 'mandatory'.

Second, many prisoners are non-violent, they are locked up due to drug offenses. Tell me what that has to do with public safety.

Scalia used to be at least entertaining, now his histrionics have become old hat. Yes, that's right Nino, drug offenders are now going to leave prison and commit strong-arm robberies! What a twit, I cannot believe that opinion was written by a sitting justice. What an embarrassment.

Look, I'm all for public safety but who isn't when it comes down to it? Ending the insane War of Drugs/Civilian Population would go great lengths to ease prison overcrowding. In fact, it probably end it overnight.

I am very well versed in the case and its history, and can only guess that you must be affiliated with the class action, since you are trumpeting their talking points like a well-trained parrot.

The purpose of my postings was not to advocate for overcrowding, nor was it to whitewash the horrid medical programs provided to prisoners by the state of California. My posts were to educate the writer and the readers that the case was not about overcrowding as an 8th Amendment violation, and that the dissent was opposed to the ruling because they felt a much narrower injunction would have been more appropriate.

You wrote: "Consequently, it should be clear that these problems affect not only your immediately "sick, infirm, and mentally ill" inmates, but also perfectly healthy inmates who might very well get sick one day themselves." The key phrase is "might one day get sick themselves" -- these are prisoners who have not suffered any harm yet, but might in the future. The injunctive remedy, however, requires release of many of these prisoners -- in short, the court is bestowing a legal remedy to those who have not yet suffered any harm, yet provided no direct remedy to the sick and mentally ill who are the true plaintiffs in this case.

This is like saying "you might someday hit my car in a traffic accident, so I'm going to suspend your license right now to prevent you from hitting me in the future." This is warped legal thinking, even coming out of California.

The liberals in California may pat themselves on the back for their good hearts, but this is misguided lenience to prisoners who are not being harmed at the moment. The atrocious medical programs in the state prison system clearly need reforming, but a mass release was not the appropriate, narrowly-tailored remedy that the legal system normally requires.

prison should be only for violent criminals. those sociopaths we can’t have living among us. they should decriminalize drugs immediately. And get rid of the three strikes law. the prison guards union is the major cause of all this. 30 years ago before they got the right to collectively bargain we spent ~5% of the state budget on prisons. Now 30 years later after flexing their political muscles we are spending ~12% on prisons. More than we do on higher education. We should outlaw all public unions now!!!

As a follow up, here is a pertinent quote from Alito's dissent that shows is complaint is about the overbroad and unfocused nature of the injunction as a remedy for medical problems:

"I do not dispute that general overcrowding contributes to many of the California system's healthcare problems. But it by no means follows that reducing overcrowding is the only or the best or even a particularly good way to alleviate those problems. Indeed, it is apparent that the prisoner release ordered by the court below is poorly suited for this purpose. The release order is not limited to prisoners needing substantial medical care but instead calls for a reduction in the system's overall population."

Thus, he and Scalia are pointing at the same problem: the prisoners that are most likely to be released are the ones that are least likely to be affected by the poor medical conditions.

Unfortunately many of your arguments in support of Scalia and Alito's reasoning are unfounded and display your ignorance regarding this issue. While you appear fairly well-versed in the law, it is clear that you yourself are not well versed on prison overcrowding and the particular case at hand (you may have read the opinion, but that doesn't mean you understand the history of the case in full).

At the end of your argument you assert, "In other words, the sick, infirm, and mentally ill are not the ones that are going to win release. In order to comply with the overcrowding order, California is going to have to release those who are very likely to be perfectly healthy -- a supreme irony given that the original lawsuit was about remedying the poor medical treatment of ill prisoners." To begin with, this statement demonstrates your overall lack of knowledge regarding the actual history of the Plata suit. The case is a consolidated class-action law suit that lodged a number of complaints against the CDCR's medical services, many of which did not simply involve the "sick, infirm, and mentally ill" inmates to which you (and Justices Scalia and Alito) seem to refer. For instance, originally the suit noted the inadequate medical screening of incoming prisoners, disorganized and/or incomplete medical records, the failure of the administrative grievance system to provide timely responses to medical issues, and a multitude of other deficiencies. Consequently, it should be clear that these problems affect not only your immediately "sick, infirm, and mentally ill" inmates, but also perfectly healthy inmates who might very well get sick one day themselves. Moreover, given the current health conditions inside California's prisons (a problem that is only exacerbated by overcrowding) it is highly likely that many "perfectly healthy inmates" will have health problems that they need adequate medical care for in the future. Thus, ALL of California's prisoners are potentially effected by the CDCR's inadequate medical care resources and that is why such a broad remedial order is necessary.

What is more, I must admit that I chuckled when I read your statement, "instead of ordering reductions in prison populations, the court could just as easily have ordered construction of new facilities." Clearly you do not know the current budgetary state of affairs in California. Expert after expert will readily tell you "California is not going to build its way out of this problem." It is undeniable that a prisoner release of this kind, if done responsibly (I am referring to alternative programs for technical parole violators, substance abusers, ect.), would be the best way to deal with the issue. It would not only address the particular constitutional violation, but also keep the general public safer. I would urge you to read Mark Kleiman's "When Brute Force Fails: How to Have Less Crime and Less Punishment" if you do not believe me regarding the issue of public safety.

Finally, the real irony underlying all of this is that you condescendingly accuse everybody else of being uninformed, when it appears in reality you yourself have very little knowledge (outside of reading one brief opinion) of this actual case. In fact, you come off as a legal "hack" who knows little about the actual Plata suit.

We are trying to have a reasonable discussion yet you talk about nonsense. Many prisoners in the Cal Prison System are NON-VIOLENT offenders. Do you get that? Also, there is a Constitution, however shredded, in place in this country. Indeed, you sound like a fool.

Please read the article and comments next time, you really don't seem educated enough about the issue for me to continue to respond further.

Today I would echo the words of the great Nelson Mandela who once asserted, "no one knows a nation until one has been inside its jails. A nation should not be judged by how it treats it highest citizens, but its lowest ones.” The Court's decision would seem an important moment in the history of American democracy. Indeed, as somebody who has studied and worked on the issue of prison reform in the United States I must admit that Justice Kennedy's reference to basic dignity is leep forward in affirming the rights of all American citizens. However, it is disappointing in many ways that the Supreme Court had to actually intervene in this affair and issue a remedial order. It seems that time and again politicians, acting in the name of law and order, fail to protect the constitutional (and human rights) of one of America's most marginalized groups: prisoners. While I applaud the Supreme Court for stepping in, it abhors me that the political establishment allowed the situation to become so grave and inhumane inside California's prisons that Supreme Court had no other choice. We have the knowledge and tools to make our criminal justice system both more effective and more humane. Yet, law and order politics seems to consistently get in the way of this much needed (and attainable) reform. Justice Kennedy's opinions should encourage the American public and its elected representatives to heed the words of Nelson Mandela and get serious about prison reform.

To reduce the prison population is the wrong decision for a number of reasons.

Firstly, it is a miscarriage of justice. As the person was sentenced by a court to serve time, then that is the time they should serve. The laws and the sentence were put in place to keep the population safe and to serve as a punishment to the offender and as a deterrent to others.

Secondly, it sends the wrong message to would-be offenders. The message is that you can commit crime, and likely get out much sooner, as the country has gone soft on crime. The message to the criminal is: It is worth taking a chance and committing crime. Career criminals weigh up the probabilities of being caught, of being found guilty, and of how long they may spend unemployed while in prison. Expect crime to increase, expect more car thefts, burglaries, rapes, armed robberies.

Thirdly, the bad practices that many have picked up in prison from like-minded criminals make it more likely that many will reoffend once released. Again, it is the new innocent victims in society who will suffer.

When people are put in prison they lose rights. It is quite right that prisons should be harsh. To many, harshness is an excellent deterrent to crime. Indeed, making prisons even more harsh will be a good thing, and some people will come out of prison saying “I just never never never want to go back to a place that that! I will change my ways, and reform, and go straight”.

As is so often the case, politics trumps intelligence every time. The bogus claims of right-wing conservatives regarding the release of "dangerous" criminals is mere scare-mongering without a shred of truth. Fact is, far too many of the incarcerated are there because of California's absurd "three strikes" law which has resulted in petty thieves and minor drug-takers being locked away for life. Any sane society would long ago have thrown out such laws, but alas it's been clear for a long time that sanity and reason are not plentiful commodities hereabouts. When state laws create impossible conditions, I suppose we have to rely on yet more laws to try to mitigate the disaster. But really it's a band-aid approach. Ultimately there's no substitute for investing in voter education and the promotion of reason in public debate. But that, of course, is a total pipe-dream and will never happen. So the madness goes on forever.

And THAT is why I read the postings to The Economist articles! To get thr FACTS on the subject! Lex humana - thank you for the FACTS. The author of the article owes you big time. You showed the incompetence of the writer extremely well.

Many posters made the point that many prisoners were only in for drug possession or dealing and inferred these were harmless crimes that did not affect society. Please tell that to people who have "lost" children to drug dealers, or to people who have suffered violent break ins by druggies stealing to support their habit. I understand one of the largest causes of burglary and prostitution are drugs. Surely these effect the public that loses children to the "profession" as well as the loss of property and risk to life.

I'll go read up more about Scalia's opinion this weekend but let me at least say this now:

Scalia is an ineffective justice because he resorts to such needless emotional inflammatory language. Would you ever imagine Rehnquist writing a dissent in this manner even if he agreed with Scalia on the merits?

Draconian prison sentences are one thing, but releasing these prisoners, which in effect you alluded to in your piece as the budget crisis will impede the smooth transfer of these individuals to other prisons, will in effect result in "muscled me" with more than likely few job skills into an economy with high unemployment. It is times like this that my decision to leave California makes some sense.

.AJD89 wrote: May 29th 2011 5:59 GMT
"You continue to suggest that there are narrowly tailored ways to remedy the Eighth Amendment violation and moreover you admit that "the atrocious medical systems in the state prison system clearly need reforming" but you (and the dissenting justices) offer no viable alternatives. However, you have not stated one narrow remedy to this situation that would be remotely effective at correcting the violation."

I can think of a pretty simple, narrowly tailored injunction that directly targets the violation -- order the state to either release or find alternative medical facilities FOR THE SICK INMATES. They are the ones being hurt by California. Finding them out-of-state treatment and confinement (Virginia, for example, has a new multimillion dollar prison that is nearly empty, since it miscalculated its crime projections) is a remedy that many states and localities have relied upon in similar situations.

Sitting back and saying that California can't afford it is not the court's problem -- there are a great many people that go into court, lose their case, get a judgment of damages against them, and have to figure out a way to pay it. Being broke does not get you off the hook.

Again -- a mass release of perfectly healthy felons is an exceptionally poor remedy for what was being sued over.

@LexHumana
1. I am in no way affiliated with the class-action lawsuit. I am merely a concerned citizen who has been following this case for quite some time.

2. The real issue at hand is whether overcrowding is the root cause of the CDCR's inability to provide adequate medical care to inmates (which nobody disagrees is an Eighth Amendment violation). Clearly, the court found this to be the case. Thus, the case hinges on whether or not overcrowding led to the Constitutional violation. Consequently, this case very much about overcrowding (although obviously it is not about whether or not overcrowding is unconstitutional per se). Justice Kennedy summed this up well when he states, "Over the whole course of years during which this litigation has been pending, no other remedies have been found to be sufficient. Efforts to remedy the violation have been frustrated by severe overcrowding in California’s prison system. Short term gains in the provision of care have been eroded by the long-term effects of severe and pervasive overcrowding."

3. You continue to suggest that there are narrowly tailored ways to remedy the Eighth Amendment violation and moreover you admit that "the atrocious medical systems in the state prison system clearly need reforming" but you (and the dissenting justices) offer no viable alternatives. However, you have not stated one narrow remedy to this situation that would be remotely effective at correcting the violation. Moreover, It seems that you would accept the Eighth Amendment violation of grossly inadequate medical services to continue in perpetuity. I understand why you would prefer narrow relief as many within the legal community believe it is the preferable form of remedial adjudication. Yet, it is clear to me (and should be obvious to you) that no such alternatives currently exist and the Court could not simply ignore the violation.

4. It what way would a responsible prisoner release order (moving technical parole violators, substance abusers, ect. into community-based supervision) actually threaten public safety? As I have suggested prior there is no evidence that such an order could not be carried out responsibly and effectively. The public safety argument is fear-mongering...plain and simple. Again, I would urge you to read Mark Kleiman's (who is QUITE conservative himself) work on crime and punishment. If carried out wisely a prisoner release order could not only remedy the constitutional violation, but also keep the public safer in the long run.